Circuit Rejects Bid to Sue Albany Diocese in Vermont

, New York Law Journal

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Map of Albany diocese and distance to Vermont federal court in Burlington

A plaintiff's attempt to sue the Roman Catholic Diocese of Albany in Vermont for negligent supervision of a former priest accused of sexually abusing a minor has been dismissed by a federal appeals court.

Taking the rare step of issuing a writ of mandamus, the U.S. Court of Appeals for the Second Circuit said the diocese's "scant" contacts with Vermont through occasional worship services held over the border from New York fell far short of giving a Vermont federal court in Burlington jurisdiction over the case.

The Second Circuit ordered U.S. District Judge William Sessions to dismiss Shovah v. Roman Catholic Diocese of Albany, New York, 13-4736-cv, where allegations against the diocese in New York for the alleged actions of former priest Gary Mercure in the late 1980s were barred by the statute of limitations.

"Subjecting the Diocese to suit and the resultant foray into sensitive documents—investigations into allegations of sexual abuse by its employees—when the case would be time-barred if brought in New York (likely the only state with jurisdiction) constitutes 'exceptional circumstances' warranting the 'extraordinary remedy' of writ of mandamus," Judges Ralph Winter, Richard Wesley and Denny Chin said by per curium opinion.

Plaintiff Michael Shovah alleged that, when he was a minor during the late 1980s, Mercure took him across the border from New York to Vermont and sexually abused him.

Shovah's claims included a breach of fiduciary duty by permitting Mercure to hold himself out at as a priest and negligent supervision of Mercure.

When the diocese moved to dismiss, Sessions held on Sept. 3, 2013 that there was personal jurisdiction and the case could proceed. The diocese filed a petition for a writ of mandamus at the circuit, where the court granted expedited consideration of the matter in December and received papers on Jan. 14.

From 2002 to 2012, the Albany Diocese had six of its more than 100 parishes located near the Vermont border and served 78 parishioners who lived in Vermont. Those six parishes employed 18 Vermont residents, used 21 Vermont vendors and accepted advertisements from Vermont businesses.

During the same time period, some 13 of the diocese's 200 priests held a total of 16 worship services in Vermont and, from 2002 to 2009, an additional priest celebrated Sunday morning mass at a Vermont church.

Sessions had found personal jurisdiction based on the services alone, saying the 13 priests and the weekly Sunday masses together were "sufficiently continuous and systematic to render the Diocese at home in Vermont."

Sessions then denied a certificate of appealability and ordered the diocese to produce documents dating back to 1975 concerning sexual abuse by diocese employees as well as the results of any internal investigations.

Friday, quoting a line of U.S. Supreme Court cases, the circuit said the writ of mandamus is only issued in "exception circumstances amounting to the judicial 'usurpation or power' or a 'clear abuse of discretion.'"

And the writ is only granted, the court said, where the party seeking it has no other means of relief, the court considers the writ appropriate under the circumstances and the right to the writ is "clear and indisputable."

The Sessions order met all three requirements, the circuit said, particularly the judge's "expansive discovery order," on investigations of child sexual abuse involving the diocese's employees, the names and addresses of the investigators and summaries of oral and written statements taken during the investigations.

"There is no evidence that this information has previously been disclosed," the court said. "The cat is still in the bag, and the ensuing litigation will inevitably let it out."

The court said that "unlike a run-of-the-mill tort case, the litigation implicates significant confidentiality interests for the Diocese, its priests, and (more alarmingly) other victims (and their families) who would likely be subjected to distressing depositions, revisiting pasts that would not otherwise be revisited in a case solely against Mercure."

In the end, the court said, "The diocese's scant contacts with Vermont do not come close" to warranting a finding of general jurisdiction.

"The clarity of the District Court's error, taken together with the substantial confidentiality interests at stake (which are amplified by the fact that the case against the Diocese is unlikely to ultimately proceed to trial in any forum), establish that the Diocese has a 'clear and indisputable' right to the writ," the court said.

Michael Costello of Tobin & Dempf in Albany argued for the defendants. Meir Feder of Jones Day in New York City and Thomas McCormick of McCormick, Fitzpatrick, Kasper & Burchard in Burlington, Vt., were on the brief.

In a statement, the Diocese of Albany said the circuit's decisions speaks for itself and that the diocese "long ago embraced its moral obligation to assist individuals abused at any time by Albany Diocese clergy, and we again would welcome the opportunity to offer assistance in this case."

Jerome O'Neill of O'Neill Kellner & Green in Burlington and Shannon Bertrand of Kenlan, Schwiebert, Facey & Goss in Rutland, Vt., represent the plaintiffs.

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